“No Stairway!? Denied!!”

Led Zeppelin is arguably the greatest rock band of all time, but there is no argument that the most famous, and most lucrative, song in their catalog is the eight-minute rock masterpiece “Stairway to Heaven.” Released in 1971 on their untitled fourth album, commonly referred to as Led Zeppelin IV, “Stairway” catapulted the band to godlike status and became the most requested song on American radio in the 1970s. As a Zeppelin fan, I’ve always respected the song’s genius composition, and as a classic rock radio enthusiast I’ve always wondered how much cash that song must have pulled in for the band over the years.

Well it turns out that number is somewhere in the vicinity of half a billion dollars. That’s billion…..with a B. Having earned that much through royalties, album sales and licensing (which LZ only recently began allowing), and having the potential to continue to bring in significant earnings in the digital age, it’s no wonder someone might want to claim that they played a part in planting that money tree.

Enter the band Spirit and their 1968 song “Taurus”. What? You’ve never heard of Spirit, the ‘60s acid rockers led by Randy California? Yeah, neither had I. In May 2014, family members of the now-deceased Randy California (real name Randy Wolfe) and a former member of Spirit filed a copyright infringement suit against Led Zeppelin seeking monetary damages and writing credit for Wolfe. The lawsuit claims that the legendary guitar intro to “Stairway to Heaven” was lifted directly from Spirit’s song “Taurus,” and after listening to “Taurus” I must say there are unquestionable similarities.

Listen for yourself: https://www.youtube.com/watch?v=3Sdbg2is2zQ

Here’s where the plot thickens. Led Zeppelin toured with Spirit on one of their early American tours, before Jimmy Page penned the guitar parts to “Stairway,” and were undoubtedly exposed to the song “Taurus.” This is important because it shows that Led Zeppelin, the accused infringers, had access to the original work.

Because direct evidence of actual copying rarely exists, courts must apply a substantial similarity analysis that begins by showing the defendant had access to the work in question. Once access has been established, not only must a court determine that the works are similar enough to find there was copying, but also that the copying rises to the level of misappropriation. Misappropriation occurs when the defendant can’t make a claim of fair use of the work. Fair use could be invoked in many circumstances, but, if I had to guess, Led Zeppelin would claim that they appropriated such a small portion of the original work, and the resulting song “Stairway to Heaven” was so transformative when compared to “Tuarus,” that a fair use defense frees them from any liability.

Most recently a judge denied Led Zeppelin’s request to have the suit dismissed or transferred from the Eastern District of Pennsylvania, where the claim was filed. They band’s lawyers argued that because the band members reside in England, and have no property or contacts in Pennsylvania, the Eastern District of Pennsylvania is not an appropriate venue. But Judge Juan Sanchez agreed with the Wolfe estate’s counter argument that if the band can make money by selling their music and playing shows in Pennsylvania, they are subject to the jurisdiction.

Another interesting question is why Spirit waited so long to take action on an alleged infringement that occurred almost 45 years ago. Copyright law follows a rule known as separate accrual that allows for a claim to be brought within three years of any act of infringement, not necessarily the original act. This means that any re-release of a re-mastered movie or album could reopen that three-year window for an infringement claim. But there is also a legal doctrine known as laches which bars claims that have been unduly delayed and, if allowed, would unfairly prejudice the defendant. Basically, a laches defense would allow Led Zeppelin to argue that even if they did copy “Taurus,” it’s too late for Spirit to come out of the woodwork and sue.

A recent Supreme Court decision regarding copyright and laches is most likely the reason Spirit is now coming forward with its infringement claim. In Petrella v. Metro-Goldwyn-Mayer, Inc., the heir to the author of the screenplay for “Raging Bull” sued MGM on copyright claims decades after the alleged infringement. In response to MGM’s argument that the claim was barred by laches, Justice Ginsburg wrote,
“in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief.”

The ruling in Petrella v. MGM represents a pretty big win for copyright holders who thought they missed the boat on getting any relief for an act of infringement that occurred a long time ago. It now appears that anytime there is a re-release of, oh I don’t know, let’s say a super deluxe re-mastered Led Zeppelin box set that just so happens include “Stairway to Heaven,” the three-year window for an infringement claim opens right back up.

But regardless of Spirit’s newly solidified status as a rightful claimant for copyright infringement, I have a feeling we won’t see this go to trial. When you have a song that has grossed $550 million, not to mention monies earned from any other of Led Zeppelin’s massive hits, it’s easy to make pesky claimants like the estate of Randy Wolfe go away. It’s safe to say “Stairway to Heaven” will continue its heavy rotation on every classic rock station in the world…and the song remains the same.

Here’s a link to the opinion in Petrella v. MGM
http://www.supremecourt.gov/opinions/13pdf/12-1315_f20h.pdf

 
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